liam and Mary of 1691, was obviously upon a broader foundation, and was, in the strictest sense, a charter for general political government, a constitution for a state with sovereign powers and prerogatives, and not for a mere municipality. By this last charter the organization of the different departments of the government was in some respects similar to that in the provincial governments. By the statute 7 and 8 Wm. III., chap. 22, § 6, it was required that all governors appointed in charter and proprietary governments, should be approved by the crown before entering upon the duties of their office; but this statute was, if at all, ill observed, and seems to have produced no essential change in the colonial policy." 1 Story on Const. 146, 147.

§ 58. After the vacating of the colony laws under the old charter by the publication of the new charter, there was room to question what was the rule of law in civil and criminal cases, and how far the common law and what statutes were in force. The council appointed by the charter were to continue until May, 1693, and hence no provision was made for a general assembly in May, 1692. But writs issued immediately on the governor's arrival, and the court met on the 8th day of June in 1692, and an act passed declaring that all laws of the colony of Massachusetts and the colony of New Plymouth not inconsistent with the charter should be in force in the respective colonies to the 10th of November, 1692, except where other provisions should be made by act of assembly; and all justices of the peace, (assistants, like aldermen of London, were ex officio justices under the old charter,) had the same powers given to them in the execution of laws which magistrates used to have.(a) It was proposed that the members of the general court

(a) Hutch. Hist. Mass. vol. ii. pp. 20, 21, 22.

should during the recess consider of such laws as were necessary to be established; for the act reviving the colony laws as has been seen, was to continue in force no longer than until the tenth day of November, 1692.

This was a work of great importance, and required the wisest heads and the purest hearts, and should have been committed to select persons, and devised under a preconcerted plan, the whole of which each person should have kept in view. But such was not the fact, and as is usually the case, the want of this wise foresight has caused the people of the province to experience many inconveniences, for the construction of many laws have been doubtful and varying, it being impossible to reconcile the several parts of their colonial code with each other, or with any general principles of law whatever; besides being framed one after another as they happened to be brought in, and sent to England for allowance. Some were disapproved; others, which depended upon, or had some connection with those which were disapproved, were allowed; whereas if one complete code or system had been prepared and sent to England, such alterations would have been proposed as might finally have issued in a well digested and consistent body of laws; and a temporary provision might have been made until a well digested perpetual rule should have been devised and settled.

§ 59. Seven years had passed, and four different acts had been sent, one after another, to England, for establishing courts of justice, before the royal approbation could be obtained. It seems to have been the practice of the administration there (and that practice well enough received in the province) to point out, either in the order disallowing laws, or to the agent who presented them, the particular exceptions, and to propose such alterations as might render them acceptable, except in those cases where the law in all its parts was disapproved.

From the fact that the legislature, under the old charters, was composed of the same men who held seats under the new one, we find the same spirit pervading the new laws which characterized the old. So striking was the similarity in some instances, the same mind must have indited the old as well as the new ones, or the latter was chiefly a transcript from the former. The first act was a sort of magna charta, asserting and setting forth their general privileges, and this clause was among the rest: "No aid tax, tallage, assessment, custom, loan, benevolence, or imposition whatever shall be laid, assessed, imposed, or levied, on any of their majestie's subjects, or their estates, on any pretence whatsoever, but by the act and consent of the governor, council and representatives of the people assembled in general court."

The other parts of the act were copied from magna charta. This was soon disallowed: so was an act punishing capital offenders, amongst whom are ranked idolaters, blasphemers, and incestuous persons; and what the benignity of the common law makes manslaughter, was by this act expressly declared to be wilful murder. This law was framed from the judicial law of Moses. Divers other acts which discovered the same spirit, met with a similar fate. The danger they had been in from Sir Edward Andros calling their title in question, it is supposed, must have occasioned an act for quieting possession, declaring that three years' quiet possession should give a title, with a usual saving clause as to infants, &c. This was probably thought too short a time, and it was disallowed, as was an act for the equal distribution of insolvent estates. The rule of law for paying debts according to their nature and degree was thought preferable, but the people having never been used to this, it would have been very inconvenient; and, upon further trial, the act, or one to the same purpose, was allowed,

It was indeed difficult to assign a sufficient reason why not only one set of creditors of a deceased insolvent should be paid their full debts, to the exclusion of all others. Not even an executor or administrator had it in his power to pay himself, to the exclusion of others whose debts were of the same nature.

§ 60. Other acts were passed and approved, among which was one for preventing of frauds and perjuries, conformable to the statutes of Charles II. Others for punishing criminal offences, in many points mitigating the penalties at common law for the observation of the Lord's day; solemnizing marriages by a minister, or a justice of the peace; settlement and support of ministers and schoolmasters; regulating towns and counties; requiring the oaths appointed, instead of the oaths of allegiance and supremacy; also the oaths of officers; establishing fees; ascertaining the number and regulating the house of representatives; as well as divers other acts of immediate necessity and general utility, which have been in force ever since, except as partially modified, but none of more universal influence than the act for the settlement of the estates of persons dying intestate. In a new country the length of time an estate has been in a family, cannot be urged for the further continuance of it; where improvements in the social condition of society are continually making, the personal estate is continually changing into real, which increases the natural injustice of one child taking the real estate of the parent to the exclusion of the other children: it was, therefore, thought reasonable that the real as well as personal estate of a parent should be equally distributed among his or her children, saving to the eldest son, either from the rules in the law of Moses, or the supposed just claim from primogeniture, a double share. The act was therefore, in general planned upon the statutes of distribution, but gave two shares to the eldest son, and undoubtedly,

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in the distribution among the children of an intestate, respected real estate in like manner with personal. The widow had her third in the real estate for life only. It is evident that the principal point in view was to make real estate partible among the children of an intestate; and that they never considered the full operation of the clause in the statute, and which was also brought into the act, that where there were no children the whole estate should go to the next of kin of the intestate. Accordingly, for more than thirty years after the framing of this law, it was a prevailing practice, though perhaps not universal, for real estate to descend and be distributed by the court of probate as at common law, the instances of children of intestates only excepted. At length, by judgment of common law, first the half-blood, then the father and the mother have been determined to be entitled to the real, in like manner with the personal estate. General entails were adjudged, notwithstanding, to be partible. It has been supposed that upon this principle, that by this act the common law was altered only in respect to intestate estates, and takes place in devises as if it had not been made. It was indeed, in express terms declared in the law of the Plymouth colony, that lands in fee simple should go to all the sons, the eldest a double share, but that entails should go according to the laws of England. (a)

§ 61. In 1672, a new digest of the laws was made and printed. There was no other edition published after the union. In 1814, the colonial and provisional laws were both published by order of the legislature, under the supervision of Ashael Stearns and Lemuel Shaw. No edition of this law has been published since. Under the province there were numerous editions of the laws

(a) 2 Hutch. His. 63, 64, 65, 66.